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  • InsideTrack
  • March 04, 2015

    Labor and Employment: Wisconsin Likely the 25th Right-to-Work State

    Wisconsin will likely become the 25th state with a so-called right-to-work law, impacting the ability of labor unions in the private sector to collect union dues or fees. In this article, Madison attorney Justin Lessner explains the law and its potential impact.

    Justin Lessner

    Construction worker backMarch 4, 2015 –Employees who work for unionized workplaces will no longer be forced to pay union fees as a condition of employment, under so-called “right-to-work” legislation that will likely pass the Wisconsin Legislature this week.

    Wisconsin will become the 25th right-to-work state when Gov. Scott Walker signs the right-to-work legislation, which was introduced Feb. 23 in an “extraordinary session.”

    The Wisconsin Senate Committee on Labor and Government Reform approved the bill by a 3-1 vote on Feb. 24, and the full Senate passed it 17-15 on Feb. 25.

    The Republican-controlled Assembly will likely approve the bill, Senate Bill 44, this week and Gov. Walker has indicated that he will sign it.  Editor’s note: Gov. Scott Walker signed this legislation into law on March 9, 2015.

    Seven other Midwestern states have right-to-work laws. Minnesota, Missouri, Illinois, and Ohio are the remaining Midwest states without right-to-work laws. Every Southeastern state besides Kentucky and West Virginia are right-to-work states. No states in the Northeastern region have a right-to-work law, and no West Coast states have one.

    What is Right-to-Work?

    In its most basic form, a right-to-work law gives an employee who is subject to a collective bargaining agreement the choice in paying union dues. The term “right-to-work” is a bit of a misnomer because it does not guarantee employment to anyone or give an employee a right to a job. Specifically, a right-to-work law prohibits union security agreements, which are agreements between a labor union and an employer that govern the extent to which a union can require an employee’s membership in a union or payment of union dues or fees as a condition of employment.

    Justin H. LessnerJustin H. Lessner (Chicago-Kent, 2006) is a member of the Litigation and Construction Practice Groups at Axley Brynelson LLP, Madison. Reach him by email or by phone at (608) 283-6761.

    However, it is important to note that an employee cannot be forced to become a member of a union in any state. In Pattern Makers v. NLRB, 473 U.S. 95 (1985), the U.S. Supreme Court held that union members have the right to resign their union membership at any time. But labor laws still require representation of nonunion workers.

    That is, unions must represent all workers in a bargaining unit, regardless of whether a worker is a union member. The nonunion workers who benefit from collective bargaining are often referred to as “free riders,” because they benefit despite membership. Thus, unions prefer bargaining contracts that require nonunion members to pay “fair share” dues or fees in order to fund the cost of representing the entire bargaining unit.

    Right-to-work laws prohibit contracts that require payments from nonunion members. As a result, many workers inevitably decline to pay these union fees but receive the benefits of collective bargaining, so long as the union retains its union certification. Unions argue that with fewer resources, they are less effective in representing workers.

    Potential Impact?

    So, what does Wisconsin stand to lose or gain with passage of a right-to-work law? Proponents of right-to-work – including Wisconsin’s largest business lobby, the Wisconsin Manufacturers and Commerce – argue the law has substantial economic benefits and companies would relocate to Wisconsin from neighboring states (such as Illinois, which is not a right-to-work state) to take advantage of the law.

    Indiana passed a right-to-work bill in 2012, and its economic development agency claims Indiana has attracted 107 companies since the passage of the bill, indicating the bill was a positive factor in moving businesses to Indiana.

    Opponents of right-to-work legislation argue it results in lower pay and benefits for workers. They also argue the law is simply a political ploy meant to starve democratic candidates of one of their largest sources of funding – unions. A formation of approximately 350 construction companies and contractors called the “Wisconsin Contractor Coalition” was formed to fight the passage of a right-to-work bill.

    According to the Coalition’s website, “businesses in the construction industry voluntarily enter into private contracts with unions because the contracts provide companies with skilled labor without the hassle of safety and skills training, providing health and other benefits, and drug screening – services which are provided by the union.” Twenty-four states have enacted right-to-work legislation.

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